1. Though county court did not have jurisdiction to entertain motion for
new trial, yet where motion was overruled and certiorari issued there-
to, the whole record being before the superior court, competent to con-
sider errors assigned. Daniel vs. State, 222.
2. Application under section 4056 of Code, affidavit must be made that
party is advised that he has good cause. Dorsey, ex'r, vs. Black, 315.
3. No question of fact involved, superior court should render final judg
ment. Ibid.
4. In acting on petition, judge cannot consider any fact which does not
appear on face thereof. Scroggins vs. State, 380.
5. Sanction operates simply as supersedeas. Judge has no authority, prior
to final hearing, to alter status of affairs. Board of Commissioners,
etc., vs. Wimberly, 570.
CHAMPERTY. See Attorney and Client, 5.
CHARGE OF COURT.
1. Request not warranted by the evidence, properly refused.
vs. State, 47; Carmichael vs. Greer, Lake & Co., 116; West. and
At. R. R. Co. vs. Adams, 279.
2. Request that written charge should be delivered, error to make verbal
additions. Fry vs. Shehee, 208.
3. To charge upon assumed state of facts is error.
4. To charge that party, under writing in evidence, did not have title, in-
vasion of province of jury.
5. Hypothesis more favorable to defendant than evidence warrants, recital
of, not error of which he can complain. Bird vs. State, 317.
6. Jury instructed that they had no power to rectify contracts, would, nev-
ertheless, understand that they could declare the one in question re-
scinded for fraud, when further instructed as to what would authorize
rescission. Dortic vs. Dugas, 484.
7. Issue as to whether sale was made to defraud creditors or not, what nec-
essarily should be charged, and what should be specially requested.
Nicol & Davidson vs. Crittenden, 497.
8. Charge on effect of failure to produce evidence in the power of party,
sufficiently definite when it announces presumption to be that the evi-
dence would be prejudicial. If more specific instructions are desired,
request should be made. Ibid.
9. Action for damages against town for failure to keep bridge in repair,
law as to effect of negligence, both as respects plaintiff and defendant,
having been charged, new trial not granted on account of failure to
instruct as to contributory negligence. Attention of court should have
been called thereto. Daniels vs. Intendant, etc., of Athens, 609.
10. Though court erred in isolated portions of charge, yet, if taken as whole,
law of case was presented, new trial refused. Phillips vs. Ocmulgee
Mills, 633.
11. Reinstruct jury, court should, at their request, on any question about
which they are in doubt; not bound to recharge whole law of case.
O'Shields vs. State, 696.
12. Involuntary manslaughter, case of, not made by any view of facts, not
error to refuse to charge thereon. Ibid.
13. Though court does not charge in language of written request, yet if sub-
stance be given, new trial refused.. Ibid.
1. Deed set out in claim, upon demurrer thereto, not dismissed for want of
proper probate to admit deed to record. Fulcher vs. Royal et al.,
executors, 68.
2. Trustee being dead, cestui que trust, who is tenant for own life as well
as that of donor, proper party to claim. Ibid.
3. Mortgage fi. fa. levied and claim filed; claimant may set up any de-
fense so far as necessary to protect his own rights without making de-
fendant in fi. fa. a party. Fry vs. Shehee, 208.
4. Sufficient for plaintiff to introduce fi. fa. without proceedings to fore-
close; claimant may introduce balance of record if he wishes. Ibid.
5. Where claimant's title was a purchase from defendant in fi. fa., who
held under bond with part of purchase money paid, verdict may be so
moulded as to require entire estate to be sold, and proceeds applied
first to balance due vendor, then to payment of fi. fa., and remainder
to claimant. Rawson vs. Coffin, trustee, 348.
6. Withdrawal of first claim terminates that suit.
7. Commencement of claim case is not the levy, but the interposition of
the claim. Ibid.
8. Claim dismissed, to recover on forthcoming bond, re-advertisement of
property unnecessary, where claimant has put it out of his power to
deliver. Lassiter, sheriff, for use, vs. Byrd & Coker et al., bob.
CLERK OF SUPERIOR COURT.
1. Entry on execution by clerk that it was issued in lieu of lost original,
not affect its validity as an original, which it otherwise appeared to be.
Cooper vs. Huff, 119.
2. Administration granted to clerk of superior court, not place trust under
his official bond as clerk. McNeil et al. vs. Smith, governor, 313.
3. Costs, not entitled to out of fund in receiver's hands until same has been
adjudged subject thereto, on termination ot case. Ballin & Com-
pany et al. vs. Clements, clerk, 546.
COLLATERAL SECURITY. See Pawn, 1-4.
CONFEDERATE STATES. See Garnishment, 9, 10.
CONSIDERATION. See Contracts, 1, 2, 10, 11.
1. Act of August 23d, 1872, authorizing persons other than defendants of
record to make defense to suits, is unconstitutional as body of act dif-
fers from title. National Bank of Augusta vs. So. Por. Man. Co. et
al., 36.
2. Act of 28th February, 1874, taxing Atlantic and Gulf Railroad Company
an amount exceeding one-half of one per cent. upon its annual net in-
come, not unconstitutional as impairing obligation of contract em-
braced in charter. At. & Gulf R. R. Co. vs. State, 312; Sav. Grif.
& N. Ala. R. R. Co. vs. State, 557.
3. The 11th section of act of 1868, embodied in section 2025th of Code,
authorizing sale of homestead, is in conflict with the first section of the
seventh article of the constitution. Roberts et ux. vs. Trammell, 383.
4. Issuable defense on oath, necessary to carry action on contract to jury
Lester vs. Pied. & Arl. Life Ins. Co., 475.
5. Incorporate manufacturing company, superior court has no jurisdiction
to, under constitution of 1868. Kehler & Bro. et al. vs. Jack Man.
Co. et al., 639.
CONTEMPT. See Process, 1, 2.
1. Surprise at testimony of adversary, no ground of. Branch, Sons & Co.
vs. DuBose et al., 21.
2. Failure of interrogatories sued out by opponent, to arrive, though coun-
sel state that they expect to contradict thereby testimony by which they
were surprised, no ground of. Ibid.
3. Materiality of evidence of absent witness not shown, motion properly
overruled. Thompson vs. State, 47,
4. Want of preparation on account of failure of counsel to know on which
docket his case was, it having been called sooner than anticipated, no
ground of postponement. Fry vs. Shehee, 208.
5, Failure of witnesses to answer as much as counsel expected from his
knowledge of what they would testify, no ground of continuance,
when they were not interrogated upon the only point which could not
be proved by other testimony. Ibid.
6. Fail witness to attend who has been subpoenaed, ground of con-
tindance. Ibid.
7. If original pleadings were full enough to give premonition that matter
embraced in amendment was likely to be used on the trial, suprise from
amendment not ground of continuance.
8. Refusal to continue case arising on exceptions to auditor's report turn-
ing purely on questions of law, in order to give time to procure attend-
ance of witness, not error. Reynolds vs. Martin et al., ex'rs, 628.
1. Agreement to settle existing debt by promise to pay part thereof void,
unless there is consideration other than springs out of original con-
tract. Stovall vs. Hairston, 9.
2. If plaintiff delayed suit by reason of promise until original claim was
barred, then he suffered such detriment as would operate as considera-
tion. Ibid.
3. Agreement in following language: "By agreement of counsel that the
consideration in the above stated case was that of negro property-or-
dered that the judgment be set aside, and be forever null and void :"
Held, that the consent of counsel extended only to the consideration,
not to the rendition of the judgment. Jones, ex'r, vs. Killebrew, 153.
4. Intent and object of parties in entering into contract material, incompe-
tent for witness to testify as to intention of agreement. He may state
what the contract was and consideration therefor. Green, executrix,
vs. Akers, 159.
5. Mortgagee, in consideration that no further obstacle should be inter-
posed to enforcement of lien, agreed to allow fifty acres covered there-
by to son and attorney of mortgagor. On trial of issue as to who was
entitled to proceeds of this tract, competent to show that mortgagor
had not complied with contract. Ibid.
6. Where the substance of a long correspondence was, that defendant
agreed to pay a definite sum to plaintiffs for execution against third
person, the fi. fa. to remain the property of plaintiffs until paid for,
then to be transferred without recourse, and defendant failed to com-
ply with his undertaking, an action was maintainable on the corres-
pondence. Kimbell vs. Moreland et al., executors, 164.
7. To avoid contract of sale on ground of false representations to induce
purchase, the plea should allege that they were false and fraudulent,
and so known to the party making them.
8. Under the contract stated above, plaintiffs held the execution as collate-
ral security, and it was their duty to collect any money to which it
might be entitled for defendant's benefit. Ibid.
9. Fair construction of contract to furnish timber, etc., to meet demand of
mill and keep the same constantly running, is that a sufficient quantity
shall be furnished to keep the mill constantly running, independent of
what might be the demand of customers. Jowers vs. Baker, 184.
10. If one indicted for larceny, pay sum alleged to have been stolen, he
cannot recover it after acquittal. Puckett vs. Roquemore, 235.
11. If payment be made under agreement that prosecution shall be settled
or discontinued, the law will leave the parties where it finds them.
Ibid.
12. Agreement to satisfy fi. fa. for less than it calls for, must be executed to
be binding. English, sheriff, et al., vs. Reid et al., 240.
13. Recognizance necessary to release principal from jail, though executed
on the Sabbath, valid. The act is one of charity or necessity. Salter
et al. vs. Sm,vernor,
14. Purchase money of goods sold to defraud creditors cannot be collected.
Heineman vs. Newman, 262.
15. "Gentlemen: In reply to your favor of the 22d instant, you will please
to withdraw your draft of $314 37 upon me, as I cannot pay for the
present. As soon as I have the money I shall remit." Too indefinite
to sustain action. Sedgwick, assignee, vs. Gerding, 264.
16. Creditors having in hand firm assets, which they claim as their own un-
der purchase from one partner, not bound, as matter of contract, by
promise to other partners to sell and apply to debt, if retracted before
acted on. Radcliffe & Lamb vs. Varner & Ellington, 427.
17. Proposition to sell contained in letter sent by mail to writer's agent or
friend, with request to communicate it, may, after communication, be
accepted by written reply to the maker of the proposition. Bryant
et al. vs. Booze, 438.
18. Sending reply to post office by same agent or friend, first permitting him
to read it, and telling him orally that the proposition was accepted, not
prevent contract from being one made by letter. Ibid.
19. Contract will be closed from time of delivery of reply into post office.
Ibid.
20. Letter written on Saturday, left with another on Sunday, to be mailed
on Monday, may be medium of closing lawful contract dated from
Monday. Ibid.
21. Verdict in action on contract where no defense is filed on oath, illegal.
Lester vs. Piedmont and Arlington Life Insurance Company, 475.
22. Cotton advanced to be returned in three years from date, contract not
illegal. Phillips vs. Ocmulgee Mills, 633.
CONTRIBUTIONS. See Equity, 21.
1. A foreign corporation which transacted its business and had its principal
office in Georgia, and which became indebted under contracts made in
Georgia, is liable to suits upon such contracts in this state, though at
the time of the institution thereof no business was being done by the
company, it having no office or place of business in the state of its in-
corporation. National Bank of Augusta vs. Southern Porcelain Man-
ufacturing Company et al., 36.
2. Service upon the president in the county where he resided at the com-
mencement of the action, where the books were, and where the stock-
holders were under notice to meet, is sufficient service on the company.
Ibid.
3. Foreign corporation, courts of this state have no jurisdiction of suit in
personam against, unless contract was made in Georgia, or the Georgia
agent was connected therewith. Remedy is by attachment. Bawk-
night vs. Liverpool and London and Globe Insurance Company, 194.
4. The Freedman's Saving and Trust Company, incorporated by act of
Congress, not a bank or corporate body in this state, within meaning
of section 4421 of Code. Cory vs. State, 236.
5. Manufacturing company, superior court, under constitution of 1868, no
jurisdiction to incorporate. Kehler & Brother et al. vs. Jack. Man.
Company et al., 639.
6. Action on contract, corporation need not set out how or by what author-
ity it was corporated, nor aver itself to be a corporation. Wilson &
Company vs. Sprague Mowing Machine Company, 672.
7. Had it been requisite, defect cured by verdict. Ibid.
COSTS. See Clerk of Superior Court, 3; Practice in the Supreme Court, 16.
COUNTY COURT. See New Trial, 8, 9.
1. Neither the judge nor the sheriff has the power to make the county a
bailee of a horse; nor is the county responsible for the loss of a horse
bailed to an officer for the purpose of bringing in witnesses to testify
for the state. Dougherty County vs. Kemp & Hood, 252.
2. Bridge, though within limits of municipality, may belong to county; if
recognized by both as property of latter, obligation to repair is on lat-
ter, and this duty includes whatever contiguous to it is necessary to
give access thereto. Daniels vs. Intendant, etc., of Athens, 609.
3. If bridge was built by authority of county, obligation to repair is on the
county, no matter in what proportion the county and town contributed
to rebuild. Ibid.
4. That town voluntary repaired same, not change this obligation, nor does
it constitute dedication by county to town. Ibid.
5. If embankment leading thereto was not necessary part of bridge, but
was part of streets of town, duty to repair same would be on latter.
Jury must determine this question of fact. Ibid.
1. Drunkenness at time of shooting not negative intent to murder. Estes
vs. State, 30.
2. Drunkenness no excuse for crime. Ibid.
3. Facts showing malice on part of defendant to deceased, competent to
show. Thompson vs. State, 47.
4. Murder, upon trial for, not error for court to refuse to charge that "if
the killing, under the circumstances, was to prevent the committing of
a serious bodily harm, or the commission of a felony, the killing is
justifiable." Ibid.
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